The Power of the Waiver:

April 17, 2013

Loychuk v. Cougar Mountain Adventures Ltd.

Bruno De Vita
Alexander Holburn Beaudin + Lang LLP

Waivers and releases of liability have been proven to be an effective risk management tool
in avoiding liability, particularly for entities that are regularly engaged in the area of sport
and recreation. A recent decision of the British Columbia Court of Appeal in Loychuk v.
Cougar Mountain Adventures Ltd., 2012 BCCA 122 demonstrates just how powerful a tool
waivers can be and, when properly drafted, how resilient they can be to challenges of
unfairness and unconscionability.

The case involved two plaintiffs, Loychuck and Westgeest. They were injured when
Westgeest was allowed to be sent down a zipline by Cougar Mountain employees at a time
when Loychuck, who had immediately preceded her, was suspended on the line before
reaching the bottom. Although the guides employed by the operator were in communication
by walkie-talkie, the individual directing Westgeest was not advised that Loychuck had
become suspended in mid-course. Westgeest was allowed to proceed down the line and
came into collision with Loychuck at considerable speed and without any ability to stop
herself or slow her descent. The operator’s employees were clearly negligent and so the
only defence available to the operator was the waiver of liability that each of the plaintiffs
had signed prior to the commencement of the activity.
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The Ball is in Your Court

April 17, 2013

Sports Law 101: Negligence

Katharine M. Nohr, J.D.

The most important type of tort to understand in sports risk management and sports law is negligence. Negligence is conduct that falls below a reasonable person standard. In other words, it is the failure to exercise reasonable care that a reasonably prudent person would have in the same or similar circumstances. This standard applies to acts as well as omissions.

There are elements that a plaintiff in a lawsuit has to prove in order for a defendant to be found to be negligent. The four elements of negligence are as follows:
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Managing the Ever-Changing Risk of Social Media

April 17, 2013

Gayle Mitcham
Marsh Canada

Social media has emerged as a prominent stage for interaction. More and more,
organizations are transforming their online presence to engage stakeholders. Many
educational institutions also leverage social media platforms to connect with the public
and students. Potential students can engage with an institution and its current students
through interactive websites, virtual tours, and online communities, such as Facebook,
Twitter, and YouTube. The downside is that institutions may underestimate the potential
negative consequences associated with these initiatives; giving rise to poor
management of the related risks. As social media continues to evolve, these threats are
becoming more common and far reaching.

Identifying risks and inherent issues of social media are the critical first steps.
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The Ball is in Your Court

April 17, 2013

Lessons from the Super Bowl: Preparing for Power Outages

Katharine M. Nohr, J.D.

The world was witness to a 33 minute black out during the 2013 Super Bowl in the Superdome in New Orleans, which halted play and caught players, fans, and organizers by surprise. The television audience witnessed a successful handling of the power outage, which did not lead to crowd unruliness, injuries or chaos. It appeared that spectators and players patiently waited for the electricity to be restored so that the game could resume.

Event organizers should consider the possibility of power outages when planning events. Black outs can be caused by weather conditions, mechanical issues, or even downing of power lines from impacts by motor vehicles. Whatever the cause, plans should be put in place to address efforts to restore power, communicate with spectators and players, crowd control, emergency illumination, managing evacuation/exiting facilities, handling television and radio broadcasts, and addressing medical and other emergencies without power.
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Weighing the Uncertain Outcome of Trial Against Settlement

February 05, 2013

Katharine M. Nohr, Esq.
Nohr Sports Risk Management, LLC

You may have followed the Barnhard v. Cybex International, Inc. product liability lawsuit in which the Appellate Division, Fourth Judicial Department of the Supreme Court of the State of New York, reduced the lower court judgment by 31% to approximately $44 Million. Later, Cybex entered into a settlement agreement, agreeing to pay, net of insurance, $19,500,000.

The case arose out of an accident that occurred when Plaintiff Natalie Barnhard was working as a physical therapist and a 500 lb. Cybex exercise machine fell on her, resulting in paralysis. A jury awarded Plaintiff $66 million, finding Cybex 75% at fault.

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Mandatory Reporters of Child Abuse and Neglect

March 22, 2012

Jen Rose
Assistant Director, Sports and Youth & Family Programs
Southeast Missouri State University

Many people involved with the operation of camps and youth programs feel an obligation to protect and support the kids who become involved in their programs, but it is important to know that for most of us it is also a legal obligation.
“Approximately 48 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands designate professions whose members are mandated by law to report child maltreatment” as stated in the Child Welfare Information Gateway in 2010. If your camp falls into one of the above mentioned geographical areas the counselors are most likely required, by law, to report issues. The US Department of Health & Human Services points out that although laws vary from state to state, typically a report must be made when during the course of your job you suspect a child has been abused or neglected, or you observe or have knowledge of a situation in which conditions could result in harm to the child. Mandated reporters can be held legally responsible if they ignore this obligation.

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